A.S. v. R.S.

• Decision Date: 14 November 2017
• Docket Number: No. 20151023,20151023
• Citation: 416 P.3d 465
• Parties: A.S., Appellant, v. R.S., Appellee.
• Court: Utah Supreme Court

416 P.3d 465

A.S., Appellant,

v.R.S., Appellee.

No. 20151023

Supreme Court of Utah.

Filed November 14, 2017

Rehearing Denied March 1, 2018

F. Lavar Christensen, Draper, for appellant

Ronald D. Wilkinson, Nathan S. Shill, Orem, Sara Pfrommer, Salt Lake City, for appellee

Justice Durham authored the opinion of the Court in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Pearce joined.

On Certification from the Court of Appeals

Justice Durham, opinion of the Court:

INTRODUCTION

¶1 A.S. (Father) appeals the district court order awarding R.S. (Mother) attorney fees and costs for the underlying juvenile court proceedings. We do not reach the merits of this case because we hold that we lack jurisdiction.¹ Mother is awarded reasonable attorney fees and costs on appeal. We remand this case to the district court for a determination of those fees and costs.

BACKGROUND

¶2 Mother and Father petitioned for divorce in the district court in 2008. In 2012, Father petitioned to terminate Mother’s parental rights based on unsubstantiated allegations of her sexual abuse of their two children. Mother counter-petitioned the court to terminate Father’s parental rights or to award her physical custody of the children. As a result of the exclusive original jurisdiction of the juvenile court over matters concerning "the termination of the legal parent-child relationship," Utah Code section 78A-6-103(1)(g), and "mak[ing] a finding of substantiated, unsubstantiated, or without merit," id. section 78A-6-103(6), on matters of "a severe type of child abuse or neglect," id. section 78A-6-323(1), the juvenile court heard the petition rather than the district court. The juvenile court and the district court maintained concurrent jurisdiction under id. section 78A-6-104 until the exclusive original jurisdiction of the juvenile court was extinguished. Id. § 78A-6-104(1)(b). ("The district court or other court has concurrent jurisdiction with the juvenile court: ... with regard to proceedings initiated under Part 3, Abuse, Neglect, and Dependency Proceedings, or Part 5, Termination of Parental Rights Act."). Therefore, while the district court had continuing jurisdiction over the divorce proceedings, including a determination "of support, custody, and parent-time ... incidental to the determination of a cause in district court," the juvenile court could "change the custody ... support, parent-time, and visitation rights previously ordered in the district court as necessary to implement the order of the juvenile court for the safety and welfare of the child. ... so long as the jurisdiction of the juvenile court continues." Id. § 78A-6-104(3)-(4)(b). "The juvenile court has jurisdiction over questions of custody, support, and parent-time, of a minor who comes within the court’s jurisdiction ...." Id. § 78A-6-104(5). The juvenile court denied Father’s petition to terminate Mother’s parental rights, granted Mother custody of the minor children, cited both Father and J.S. (Stepmother) for contempt, and ordered Father and Stepmother to pay all legal fees, costs, and expenses incurred by Mother.

¶3 Father and Stepmother prematurely appealed the juvenile court’s order before it became a final order, because the award for attorney fees and costs had not yet been reduced to a judgment. See DFI Props. LLC v. GR 2 Enters. LLC , 2010 UT 61, ¶ 20, 242 P.3d 781 (2010) ("This case represents another in the line of cases where we have held that a judgment awarding attorney fees in a yet-to-be-determined amount is not final for purposes of appeal. ... [and] we lack jurisdiction over appeals from such judgments ...."). But the court of appeals, apparently unaware that the order appealed from was not a final order, failed to dismiss the notice of appeal and instead issued an opinion affirming "[t]he juvenile court’s order ... in all respects except for the determination of contempt," which it vacated because of lack of notice and hearing and remanded to the juvenile court for a hearing on the contempt allegations. In re E.S. & N.S. , 2013 UT App 222, ¶ 9, 310 P.3d 744. Because the time to petition for writ of certiorari on the court of appeals’ opinion has lapsed, the parties are foreclosed from arguing that the court of appeals lacked jurisdiction, and we treat it as a final judgment.²

¶4 During the pendency of the first appeal, the juvenile court continued to have jurisdiction over, and hold status hearings regarding, the welfare of the children. On remand from the court of appeals, the juvenile court held contempt proceedings on December 13, 2013, issuing its contempt order against Father and Stepmother on January 23, 2014. A child welfare status hearing was held on January 16, 2014 with a follow-up phone conference on February 20, 2014. The juvenile court, having determined that the outstanding motions regarding the child welfare case were resolved as of its March 17, 2014 order, released the Guardian ad Litem from the matter and terminated the juvenile court’s jurisdiction, noting that a separate order regarding the contempt charges was issued and that the outstanding order for attorney fees would be referred to the district court for entry of a judgment, because that court now had exclusive jurisdiction. See UTAH CODE § 78A-6-103 to -104. The findings and order of the juvenile court are "binding on the parties to the divorce action as though entered in the district court" when "a copy ... has been filed with the district court." Id. § 78A-6-104(4)(c) (emphasis added). However, once the district court again has exclusive continuing jurisdiction, the district court is able to make changes to those orders to ensure the appropriate needs of the children and the parties are met. See Id. § 30-3-5(3)-(4) ("The [district] court has continuing jurisdiction to make subsequent changes or new orders for the custody of the children and their support, maintenance, health, and dental care, and for distribution of the property and obligations for debts as is reasonable and necessary. ... Child support, custody, visitation, and other matters related to children born to the mother and father after entry of the decree of divorce may be added to the decree by modification.").

¶5 As jurisdiction over the case had been transferred to the district court, Mother filed a motion for a judgment on the attorney fees and costs ordered by the juvenile court, with accompanying memorandum and affidavit. Father opposed the motion, arguing that the court did not have authority to award attorney fees and costs, but not addressing the specific validity of the amount requested. The case first came before a commissioner, who ended the proceedings when Father’s counsel began to argue the lack of authority of the juvenile court to award attorney fees. The commissioner correctly noted that a juvenile court judge, with the equivalent authority of a district court judge, had made the ruling and that the commissioner did not have authority to change the ruling of "a higher judicial authority ... [that says Mother] gets attorney’s fees." "[A commissioner] cannot decide that a higher judicial authority got it wrong." The matter then came before the district court, which granted Mother’s motion for attorney fees, found that the fees requested were reasonable, and entered a judgment in the amount of $180,780.47 against Father. This judgment and order was dated April 6, 2015.

¶6 Father then had 14 days³ to file a motion for a new trial under Utah Rule of Civil Procedure 59. UTAH R. CIV. P. 59(b) (2014) ("A motion for a new trial shall be served not later than 14 days after the date of entry of the judgment."). Thus, the deadline for filing a rule 59 motion in this case was April 20, 2015. Father admits in his brief that "[o]n April 20–21, 2015" he filed "documents associated with a U.R.C.P. Rule 59 motion." In the district court’s order denying Father’s rule 59 motion, the court correctly stated that the Father’s motion was filed on April 21, 2015. Father attempts to overcome this timeliness issue in his brief to this court with the following explanation: "(NOTE: That date [April 21st] is in error. It was filed electronically the day before.)" However, the docket shows that although the memorandum and its exhibits were filed on April 20, 2015, just before midnight, the electronic time stamp shows that the rule 59 motion along with several other supporting documents were filed just after midnight on April 21, 2015, ranging from three to sixteen minutes after midnight.

¶7 Because counsel for Father was not able to account for this procedural defect at oral arguments, we ordered supplemental briefing from both parties regarding the timeliness of the rule 59 motion and whether, if the rule 59 motion was untimely, the filing of the memorandum was sufficient to confer jurisdiction. Father did not meet his burden of persuasion in his supplemental brief, and we therefore hold that we do not have jurisdiction to rule on the merits.

STANDARD OF REVIEW

¶8 The timeliness of a rule 59(e) motion is a matter of law reviewed for correctness. A district court judge "err[s] as a matter of law in granting [an] untimely rule 59 motion." Sanpete Am., LLC v. Willardsen , 2011 UT 48, ¶ 66, 269 P.3d 118. Whether jurisdiction to reach the merits of an appeal "exists is a question of law which we review for correctness, giving no deference to the court below." Pledger v. Gillespie , 1999 UT 54, ¶ 16, 982 P.2d 572. Jurisdiction is a question that may be raised by the court or a party at any time during the proceedings. See Workers Comp. Fund v. Argonaut Ins. Co. , 2011 UT 61, ¶ 8, 266 P.3d 792 ("Because we agree that [Father] did not file a timely notice of appeal, we are without jurisdiction to address the issues ... raise[d] and therefore dismiss this appeal."). This court has jurisdiction to hear this appeal under Utah Code section 78-3-102(3)(b).

ANALYSIS

¶9 Because the jurisdictional issue is controlling...